A commentary on rabbinic texts and toxicality

September 22, 2005

Fate spits in the face of The Good. Yesterday, the Talmud's daf yomi readings included:

"Let him spill the produce that becomes soiled to the ground" (Shabbat 142a)
"Shake the pillow so that the money will fall off"
"A motley crew will create another bunch of mongrels" (142a)
"We shall pour water on filth until it disappears" (142b), and, last but not least,
"Roast a goose and throw its intestinesentrails to the cat..."

Today, we enter the 22nd chapter of tractate Shabbat. Sample quote::

"If you bleed a beast for the sake of healing, the blood will not be a conduit for impurity." (144a)

Not to mention the vulgar imagery of R. Huna son of R. Yehoshua and Rav. Ashi at the end of chapter 21.

Alas! The Red Sox lost, the Yankees won. The Red Sox have not only fallen from 1st place, now they are also trailing in the contest for the AL wild card.

September 21, 2005

Circumcision can be a hazardous activity in two ways, according to recent daf yomi readings (Shabbat ch. 19). For one, Jewish observance and performance of the bris milah (= covenant through circumcision) may be persecuted by Gentiles. The Romans apparently sought to suppress bris milah, as indicated by our mishnah (bShab 130a)* and other rabbinic texts (e.g., the midrash Mechilta 20:6). Despite the persecution, rabbinic Judaism continued to require bris milah, sometimes at the price of martyrdom. The gemara deduces that circumcision is extraordinary for various reasons, such as the thirteen (1) covenants for which milah is done.

Of course, circumcision is hazardous in a second way -- as a physical, "medical" procedure. In my draft chart on risk in Jewish law, I see circumcision as a fascinating case because, depending on the circumstances, a bris may exemplify four different categories of risk:

(A) First, I label circumcision as a medium risk for newborns -- not the lowest probability of harm, and not necessarily fatal harm -- in the pre-Modern era. On 134a, the rabbis focus on bandaging, which if applied badly could disfigure the child's genitalia. Circumcision was a rather risky surgical procedure in antiquity and medieval times (cp. story of womana whose first 2 sons died, 134a Shabbat).

(B) Secondly, the Talmud also looks at elevated risk conditions for circumcision, as when an infant is too weak, too emaciated, or discolored. As a general principle. the mishnah states that a sick newborn is not circumcised until he becomes healthy. Specifically, the rabbis felt that the infant's color indicates a danger to their life (e.g., yellow = jaundice) may require postponement of the procedure (134a).

(C) Third, today, yellow skin tone is much less an indicator of actual danger to the baby. Instead, doctors can measure jaundice directly. Thus, today circumcision has become far less risky thanks to medical changes.** (Hence, here is where Jewish medical ethics adapts to a change in medical care. Contrast this situation with cases of where modern-era traditional rabbis feel that nature has changed.) DovBear tells an anecdote and poses a fine question: If a "yellowish" newborn is cleared by a doctor as ready for an immediate circumcision, should the Jewish father stay loyal to the medieval rabbinic authorities who cautiously require the postponement of the bris milah? Or, can our Jewish medical ethics (halakhah) waive the postponement, and thereby recognize and downshift to a lower risk based on modern medicine's ability to cure, prevent and remedy nearly any risks from circumcision for newborns?

(D) Fourth, the halakhah of circumcision also tackles an extremely low or implausible probability of harm. The Talmudic rabbis deal with the belief (or superstition) that an ominous wind may increase the risks to the infant (bYev 72b). Today, we are not inclined to credit a spooky wind as adding any marginal risk to the bris of an 8-day newborn. Indeed, I venture to say that many Rabbis themselves may not have considered the additional marginal risk as significant. After all, they judged it unnecessary to delay circumcision for any wind-related risk because "The Lord preserves fools" (shomer peta'im haShem) -- God protects us from dangers, at least dangers like inauspicious winds.

Although circumcision may illustrate rabbinic handling of these four different types of risk, I would emphasize that circumcision is unique and notillustrative. Almost no matter what the risk, throughout history Jews have felt commanded under Jewish law to take chances and perform the bris. In other words, circumcision is one of those actions that rabbinic law considers as highly unresponsive to the changes in risk conditions.

Sincerely,

Kaspit כספית

APPENDIX: Tractate Shabbat chapter 19 deals with much Talmudic medicine. For care of a circumcised baby, for instance, the Talmud discusses the use of cumin, salves, bandages, treatment of the wound, . In interpreting a mishnah, several rabbis insist that sabbath prohibitions may be overridden in order to bathe the baby's wound, as well as its entire body, because to refrain from a hot water bath is considered dangerous (saqanah) (134b). The Talmud also discusses androgynous babies (136b), babies with rare conditions ("suppressed" or absent foreskin) premature births and the danger facing premies (135a). The Talmud also contemplates whether, during its first 30 days of life, a newborn is deemed a safeqa, one of doubtful viability (136a), which leads into several aspects of fetal and newborn medical ethics. Feverish newborn (137a). Retakes w/a second circumcision procedure (137b).

* Rabbi Eliezer rules that, as an exception to the Shabbat laws, the Jew who will perform a bris, the mohel, may carry a concealed knife to the ceremony. R. Shimon b. Elazar categorizes the bris as a divine commandment for which "Israel sent themselves to death" (masru Yisroel atzman).

For a personal look at the practical workings of halakhah, please read the wonderful story by Rabbi Publisher Student* about how he set up "the weirdest eruv on the block". Rabbi Gil Student's tale of the eruv** begins with the following anecdote, which speaks volumes I think about the actual practice of halakhah in daily life:

I live in Flatbush, in which there is an eruv that is a matter of great controversy.[1] In all likelihood, were it not for the social stigma I would use the "old" Flatbush eruv, which I believe my rabbe'im would approve but they refuse to take a stance on a controversial matter in a community in which they do not reside. When I first started davening at my current shul, the Flatbush eruv came up in conversation with the rabbi and when I asked him whether he liked it or not, he said that it depends who asks him. "What if I ask you?" "No, it's not for you." I can respect that answer. The "new" Flatbush eruv is not better than the old one in any meaningful way. Plus, it does not reach my block.

I was particularly struck by the response of the shul's rabbi, "No, it's not for you." Jewish law requires much more than systematic deductions from a compilation of rules. Judaism revolves around individual cases and situations; halakhah is quite casuistic. The controversy in Flatbush does have the advantage of making space for leniencies, depending on rabbinic discretion. Rabbi's Gil's account implies that another shul-goer might get the answer, 'Yes, that eruv is made for you.'

{New} Rabbinic controversies and minority opinions are recorded by the tannaitic literature (the Mishnah, the Tosefta and BT/JT baraitot). Why? Perhaps to rule out the path not taken; but also to leave a trace of alternative paths, their supporting authorities and plausible halakhic reasoning. Just like we see between generations of the U.S. Supreme Court, a dissent in one case may become the groundwork for a divergent decision (or, rarely, direct reversal) in a similar case in the next generation.

{New} To put Rabbi Gil's narrative in a social science context, I would turn to Pierre Bourdieu's Outline of a Theory of Practice. (Corrections welcome here as elsewhere.) Bourdieau is writing about different theoretical models of the social world. He offers an alternative to the mode of theoretical knowledge that he calls objectivist. Objectivist knowledge constructs rituals and social relations as if built upon formal roles, conditions, exchanges, and rules. When it comes to law, including halakhah ("Jewish law"), the typical objectivist model is legal positivism. (See Mishpat Ivri in Wikipedia.) Objectivist knowledge withdraws from the social experience, sets up a point of view that turns rituals and other practical activity -- such as daily practice of law -- into objects of observation and analysis, i.e. objectivist representations. Bourdieu (3f.) argues that objectivist abstractions exclude and deny certain experiences, including the ways that social agents really do have explicit knowledge of the structures of the social world. I think this means, crudely, that objectivists assume that the natives can't know as much as the 'objective' anthropologist. Bourdieu gives the natives far more credit.

Looking back at the eruv story, it is apparent that Rabbi Gil does have a sense of how halakhah functions in practice, how the experience of halakhah is fully objectified in its abstract rules. So he knows how to ask for a rabbinic opinion, who to ask, and he can observe the subtleties at play in his interaction with the shul rabbi. The shul rabbi, the eruv consultant(s) in the story, and, I dare say, Rabbi Gil are "virtuosos" who know both the legal postivist account of formal "Jewish law" as well as the lived experienced of halakhah as a practice. As Bourdieu writes:

... only a virtuoso with a perfect command of his 'art of living' can play on all the resources inherent in the ambiguities and uncertainties of behaviour and situation in order to produce the actions appropriate to each case, to do that which people will say "There was nothing else to be done", and to do it the right way. We are a long way, too, from norms and rules... but [objectivists are] never presuming to encompass in a catalogue of recurrent situations and appropriate conduct, still less in a fatalistic model, the 'art' of the necessary improvisation which defines excellence. (p8)

The language of rules and models, which seems tolerable when applied to 'alien' pracices, ceases to convince as soon as one considers the practical mastery of the symbolism of social interaction -- tact, dexterity, or savoir-faire -- presupposed by the most everyday games of sociability and accompanied by the application of a spontaneous semiology, i.e., a mass of precepts, formulae, and codified cues. This practical knowledge ... continuously carries out the checks and corrections intended to ensure the adjustment of practices and expressions to the reactions and expectations of other agents. (p10)

{New} Kudos to Rabbi Gil Student (and his various interlocutors) for the masterful, necessary improvisation of his "weird eruv" in Flatbush. From his account, it seems that he has indeed adjusted for "the reactions and expectations of other agents" in his neighborhood, who are both impressed and inspired by the virtuosity mobilized by Rabbi Gil and his co-conspirators. Kudos, too, for writing a fine, almost anthropological account of the transactions involved. Bourdieu would be pleased.

(For readers unfamiliar with an eruv, I expect to be writing more on this topic. Soon the daf yomi Talmud cycle will shift to the tractate Eruvin. Meanwhile, I wrote one post on Sabbath space and time, which has been "vanished" to Quicksilver: The Prequel here.)

Kol tuv,

Kaspit

* Insider joke based on comments to this Hirhurim post. ** An eruvis a ritually designated enclosure, a symbolic wall or fence that marks off an area in which some sabbath prohibitions on carrying do not apply. An eruv is an example of a legal fiction in Jewish law.

"Take back" legislation in Europe is driving car makers to vastly improve recyclability (and recycling), as noted in articles in the NYT (9/19 HT Env Law) and Grist (9/20). Grist explains the "take back" laws which require manufacturers to assume end-of-life responsibility for the disposal of appliances, cars and certain other products. The New York Times argues that U.S. companies are lagging in recyclability work:

["Take back" legislation] is definitely not a cost of doing business in the United States, where such "extended producer responsibility" laws are not on the legislative agenda. "The U.S. has generally failed to match Europe in making producers responsible for their products, in large part because of its zealous overreliance on voluntary, market-based approaches," said Charles Griffith, auto project director for the Ecology Center, an environmental advocacy group based in Ann Arbor, Mich.

Meanwhile, the Kol-Chai listserv of Jewish environmentalists is mildly buzzing about more run-of-the-mill recycling, e.g. at Jewish schools and synagogues.

For an excellent Orthodox article on recycling, there is a Hebrew article in Techumin (Hebrew) by Rabbi Yosef Gavriel Bechhofer. This article looks in detail esp at the rules of bal tashkhit ("do not destroy") as they apply to various recycling scenarios. Rabbi Bechhofer argues that recycling is a discretionary positive commandment. He also offers an in-depth analysis of whether and when recycling of waste is required in order to avoid the negative command of bal tashkhit.

Rabbi Bechhofer also taped a teaching (shiur 98), Reversing Bal Tashchis: Recycling, which you may find at your local Orthodox school, yeshiva or maybe by mail order. ($5 each but soon to be on-line for free)

I also came across a sweet, idiosyncratic sermon by Rabbi Adilman. He cites Jewish sources on the reuse ("recycling") of various ritual items, such as the lulav , tzitzit (fringes), and foods, and he advocates reusing yahrzeit candles. Also, you may be interested in the Torah recycling network. Here, again, instead of "recycling" they might more accurately say reuse. Recycling of materials requires a significant amount of reprocessing, often with much attendant pollution. More environmentally sound are programs to reuse things, whether underutilized Torah scrolls or beverage containers, as with Israel's bottle bill program.

Kaspit

PS The Grist article also refers to the European law, "Restrictions on Hazardous Substances", which clamps down on lead, mercury (aka quicksilver), hexavalent chromium, PBBs and PBDEs (e.g. flame retardants). Reportedly, some U.S. businesses are not planning well for the European toxics use reduction deadline. The law is pushing manufacturers like Intel and Hitachi to make lead free electronics equipment.

September 16, 2005

Katrina struck Gulf Coast counties with a heavy concentration of oil and chemical industry facilities. So, part of their legacy of hazardous waste has churned up, awash, and coming back to haunt us. Plus, toxic chemical storage that may have been spilled. (Other Katrina posts here.)

It's too early to estimate the environmental and toxic aspects of the hurricane's damage, but here is some news and links:

{9-16} Coast Guard reveals more on oil spills (HT EffectM). Indeed, the spills are now 2/3 the size of the Exxon Valdez, for which "a team of economists estimated the aggregate willingness to pay of U.S. households to prevent another oil spill of that size in Prince William Sound to have a lower bound of $2.8 billion and a mean of $7.19 billion. (HT Enviro Econ).

{9-8 update} EPA reports that it tested "priority pollutants such as volatile organic compounds (VOCs), semivolatile organic compounds (SVOCs), total metals, pesticides, herbicides, and polychlorinated biphenyls (PCBs). ... Lead concentrations in water exceeded drinking water action levels. These levels are a concern if a child ingests large amounts of flood water. For the additional chemicals tested, we have yet to detect contaminant levels that would pose human health risks. ... EPA testing has focused on neighborhoods and not in heavily industrialized areas."

"Michael McDaniel, the Louisiana secretary of environmental quality, said it was "simply unfeasible" to attempt to filter the water before flowing it into the lake. The EPA granted the Army Corps of Engineers a waiver from treating floodwater before sending it into Lake Pontchartrain." Read interview. Any public input on this waiver?

{9-8 from Gristmill} "An article on CNN.com today quotes Louisiana Department of Environmental Quality Secretary Mike McDaniel: "Everywhere we look there's [an oil] spill ... there's almost a solid sheen over the area right now." The story also describes destroyed sewage plants, natural gas leaks, and oozing vehicles of all shapes and sizes. It is, as McDaniel says, 'almost unimaginable'."

{News 9-6} Reports on the toxic brew and e-coli situation by CNN (E.g., Rodney Mallett, communications director for the Louisiana Department of Environmental Quality, say there do not appear to be any choices other than to pump the water into Lake Pontchartrain or the Mississippi River, which flows into the Gulf of Mexico, a key maritime spawning ground. "I don't see how we could treat all that water," Mallett said.") Reuters (Bass and Murphy oil spills, 25 damaged sewage treatment plants)

Bit too tired to go thru all the toxic potential involved here, but in general, you've got some 250,00 batches of household chemicals mixed with leaking gasoline and kerosene from underground tanks, cleaning fluid from dry cleaners, chemicals from a variety of businesses, etc. Then you've got a myriad of tanks containing who knows what that would have floated off their footings, breaking their connections and spewing their contents. (9-2-05)

The finger-pointing has already begun. Nobody causes a hurricane. Of course, there's a history behind the limited preparedness of this heavily industrialized region. But who bears responsibility for the concentration of industrial toxicality in the poor counties of Louisiana and Mississippi? The responsibility is dispersed, like barrels of pollutants in a toxic stew.

Gabe Kapler was hustling around the bases on Thursday -- then he suddenly collapsed in the infield due to a ruptured Achilles tendon. Ouch! I guess poor Gabe's out for the season. Refu'ah shleymah (speedy recovery) to Gabe.

Also, a belated refu'ah shleymah to Adam Greenberg, the unlucky guy who got horribly beaned facing his very first pitch in the majors. Cubs update here. His parents and three siblings were watching, imagine how they felt.

So, will Rabbi Moses Feinstein zt"l be posthumously rethinking his ruling to allow professional baseball under Jewish law? Well, Reb Moshe didn't overturn his own precedents often. Adam and Gabe, maybe he'll put in a good word for your with the heavenly front office....

{New}FEMA's fearsome and fascinating list of governmental "waivers and dispensations" from INS, DOT, DOE, HHS, Coast Guard, etc. Much laudable. But, for instance, it notes that, on 8/30, EPA issued an "enforcement discretion determination to the U.S. Army Corps of Engineers facilitating the pumping of [toxic] water out of flooded areas." Also, "the Pipeline and Hazardous Materials Safety Administration has issued emergency exemptions ... authorizing them to waive all hazardous materials transportation safety regulations (except those applicable to radioactive materials) on shipments to, from, and within the Hurricane Katrina disaster areas when necessary to support the recovery and relief efforts." How, if at all, is the FEMA allowing and handling public input and accountability on these reg waivers?!

September 15, 2005

Hazon recently wrapped up another successful New York Jewish environmental bike ride. This unorthodox group also runs an Israel ride, created a buying co-op between urban communities and organic farmers, and worked on developing Limmud NY. Hazon was recently listed among the top 50 innovative Jewish groups. (I would have reported on the Hazon bike rider earlier, but for hurricane Katrina. New Yorkers can still go to their celebration party on Sept. 21st.

Canfei Nesharim, a more Orthodox Jewish environmental group, issued another newsletter. One article deals with one of my pet peeves, the plastic and styrofoam waste on Shabbat at Orthodox homes and shuls. The author recommends bulk purchase of recyclables, but it would be better to use non-disposables. Also in the newsletter:

Rabbi Shmuel Simenowitz from Sweet Whisper Farms explains the halakhah on re-using "graywater"(that's wastewater except toilet waste). Graywater can be used for toilet flushing and lawn and garden irrigation. The freiliche* Rabbi S. says that, under Jewish law (halakhah) graywater shouldn't be used for ritual handwashing. He also explains that graywater was analyzed in daf yomi about 2 months ago:

Not only is wastewater reuse consistent with halachic principles, but the Talmud actually addresses the issue of graywater explicitly. In Shabbos 78a, the gemara discusses volumes of liquids which may be transported from one domain to another on Shabbos. The quantity given for wastewater is a r'viis. The gemara then inquires as to the uses for wastewater. The gemara replies that it can be used to mix with clay (an industrial use). The Tosfos (ad loc.) goes even further to differentiate between lightly used non-potable water which could still be used for washing cups and platters and heavily soiled or disgusting water which even then could be reused as suggested by the gemara.

* "The freiliche farmer - Rabbi ShmuelL Simenowitz is one of the finest guitarists on the Jewish musical scene. Well versed in Jewish liturgical and folk melodies, he blends the different musical styles that shaped his life - Hebraic chant, Southern blues and rock, bluegrass, jazz and reggae. The result was "The Jewish Blues" released in 1980 with long-time friend and musical mentor, guitar legend Roy Buchanan. Simenowitz has toured extensively with his band, "The Jewish Blues" at concerts in colleges and festivals throughout the US, and has accompanied Shlomo Carlebach, Piamenta, and others. In 1995, Shmuel and his family established Sweet Whisper Farms, a horse-powered, organic maple syrup farm in rural Vermont. He heads "Project Ya'aleh V'Yavo" introducing day school students to farming. The Freilicher (happy) Farmer will perform his jolly tunes, and also sell his own maple syrup products, and offer maple syrup tasting."

I've placed the new newswire at the bottom of my sidebar, next to Google's searchlet. Let me know what you think. Are there any comparable newswires for Jewish law, environmentalism and social ethics?!

Risks in the modern sense are not systematically addressed by Talmudic thought. Last week, the Talmudic daf yomi reading (bShabbat 129b) covered the risk-taking principle of “The Lord preserves the simple” (shomer peta’im HaShem -- see&nbsp;smokingexample). In this post, I’ll try to get a handle on the overall Talmudic context for risk-taking, esp. as it may apply to environmental and occupational hazards. I’ll analyze the shomer peta’im HaShem principle later. [This post and accompanying chart are in draft form. Feel free to comment or ignore…]

Risks are somehow wrapped up in dangers, yet risks are not the same as dangers. So, to judge environmental, occupational, consumer, and other health risks from Talmudic state of mind, we first need to ask, what are dangers?

From danger to risk. Danger is a common term throughout halakhic literature. Dangers include anything that works to one’s serious disadvantage, causing loss, pain, damage, or injury.&nbsp;Life is an awesome and marvelous gift, yet danger is omnipresent. Some basic human activities hurt, like giving birth and dying. Plus, accidents happen. And God happens. In Judaism, the omnipresent HaShem (d/b/a The Almighty) is awe-inspiring and fearsome. Merciful and kind, God is also utterly dangerous. Arguably, any serious loss or harm is caused by HaShem or, at least, under God’s watch.

Danger can be felt. You can have an intuition of danger or look at the white of its eyes. Stand in the eye of the hurricane and then experience its destructiveness. Danger is about as real as pain and death.

“Risk” is a step removed from danger. Risk is a concept, a category of understanding (Kant) that adds to danger another element: chance, hazard, probability. Risk = danger + probability. Probability is found in two types of Talmudic reasoning about uncertainty.[1]

However, in modern thought, probability goes beyond uncertainty. Thanks to probability theory, nowadays ‘risk’ mixes danger with a dose of randomness. For Judaism, randomness seems to cut against a pure theology of divine power. By the same token, randomness throws a wrench into the theological machinery of free will. Perhaps this explains why, in futile protest to the arbitrary and random, Jewish law (halakhah) does not quite have a traditional Hebrew term that translates into ‘risk’

Luckily, Jews tend to eschew systematic theology. Classical Judaism works more smoothly with archetypes than abstract definitions. So, in our narrative and legal discourses, traditional Judaism does not define ‘risk’ yet it talks about numerous risks. Though it may be theologically contradictory or paradoxical, the Talmudic tradition also allows for fate, chance and the random.

Talmudic writings on risk-taking are expressed through various literary forms, e.g. as principles, rules, and cases/examples. To gain an overview of the various Talmudic approaches to risk-taking, I am trying to organize the material in a chart. This DRAFT chart of Talmudic risks&nbsp;takes into account the type of halakhic norm (e.g., prohibition or advice), the subject’s response to the risk (e.g., prevent or take risks), and the risk characterization (level of danger + probability of harm). The chart shows the breadth of risks and range of rabbinic approaches; it also calls attention to the difficulty in formulating a consistent theory of risk-taking for Jewish law.

I would appreciate getting feedback on this work in progress, but it may contain errors so please read it at your own risk.

Good shabbos,

Kaspit

[1] Moshe Koppel analyzes two types of Talmudic reasoning about uncertainty: (1) When the rabbis can count up the possibilities in an uncertain situation, they calculate the odds. The halakhah is then decided with the majority (rov - RDIK). (2) When an uncertainty cannot be counted, I think that the sages reason from ballpark estimates. They then devise an ad hoc probabilistic rule to decide with the majority (rov - RDLK).